Ghosts of past constitutions
On May 10, 2022, a notification was issued by the Cabinet Division stating that the Governor of Punjab, Mr. Omar Sarfaraz Cheema, had been removed from office. Previously, the prime minister advised the president to impeach the governor, but the president refused. Notwithstanding this refusal, the notification sought to remove Mr. Cheema as governor.
The fundamental question regarding the impeachment of the governor is not who can order it, but who really makes the decision: the president or the prime minister (and his cabinet). This debate, in turn, stems from the words used to describe the term for which the governor will serve, as provided for in section 101(3) of the constitution – the “pleasure of the president”.
Taken literally, the phrase indicates that the governor serves as long as the president chooses. But in this case, as in most constitutional debates, the sentence has a story that matters. In this case, the phrase is our reworking of a term taken from English legal tradition, “Her majesty’s pleasure”. In the UK, the phrase refers to the idea that all legal authority of government emanates from the monarch. Similar artistic terms also remain in use in Commonwealth countries where the Queen is represented by a Governor-General (such as Canada and Australia).
The “pleasure” of the head of state is commonly used as a technical term in various contexts, such as the indefinite period of time an official holds office or the period of time prisoners must be held after a conviction for a criminal offence. . In the context of an office holder’s tenure, it is also referred to as the ‘pleasure doctrine’ and the earliest discussions of the legal concept are found in the UK Privy Council decision in Shenton v Smith, 1895 AC 229 (PC) and the decision of the English Court of Appeal in Dunn v R, (1896) 1 QB 116.
Simply put, the “Pleasure Doctrine” provided that the Crown (the government acting on behalf of the King or Queen of England) could terminate the employment of a civil servant at its pleasure and that the holder of the charge had no security of tenure. The reason this doctrine has been recognized is that in many cases it would be detrimental to the interests of the state if an employee such as a civil servant or military officer continued to work. Accordingly, it is recognized that broader public interests determine whether someone should remain in office (or not) and it is important that the state has the flexibility to remove them.
It is in this context of indeterminate seniority of the position that the expression “president’s pleasure” is used in our constitution. When the constitution was first drafted in 1973, there were only two office holders who served at the pleasure of the president: the attorney general and the governor of each province. In the original 1973 constitution, any power exercised by the president was subject to the binding advice of the prime minister. Section 48(1) made this clear and nowhere was there any mention of the President having any discretion in exercising any power that might have been conferred upon him. The pleasure of the President was therefore, in reality, the pleasure of the Prime Minister.
The current constitution, however, is quite different. In a number of places (but not all), where the President has been given power, there is also repeated wording that the power must be exercised in accordance with the advice of the Prime Minister. For example, Article 92 originally gave the prime minister the power to appoint and remove federal ministers without any mention of the president. Now the constitution states that it is the president who appoints and dismisses a minister, but it repeats that it must be on the advice of the prime minister. There is similar language with respect to the appointment of councilors (section 93), the appointment of governors (section 101(1)), the appointment of the president of the Public Service Commission (section 242(1A)) and appointments of the president, the joint committee of chiefs of staff and the three heads of the armed forces (article 243, paragraph 4).
So why repeatedly refer to “the prime minister’s opinion” when you have already said in article 48 that it applies everywhere? Normally, this would be considered bad writing. But closer investigation shows that this seemingly excess language is largely the result of efforts by military dictators to reverse past changes.
When General Ziaul Haq decided to restore the 1973 constitution in 1985, he made a number of changes to protect his powers as president. The repetition of specific provisions subordinating the power of the president to the advice of the prime minister was therefore necessary in certain cases because General Zia there created exceptions to the general rule according to which the president had full discretion in all other matters. As a concept, it was foreign to the original constitution. The word “discretion” was not used once in the 1973 constitution. But in 1985 General Zia made a number of changes that gave the president discretionary power over key constitutional issues.
Since 1985, most of General Zia’s amendments have been undone, including the 18th Amendment. However, not all of the general’s changes were completely undone. In particular, Article 101(1) originally stated that the appointment of the Governor would be made by the President, and it was understood that it was made on the basis of the binding advice of the Prime Minister. General Zia first amended the constitution in 1985 to say the president could make the appointment “at his discretion”. Then, via the Eighth Amendment, changed the language to say that governors would be appointed “after consultation with the prime minister” (meaning the president could override the prime minister’s advice). The 13th Amendment changed this to “upon the advice of the Prime Minister” and made the advice binding. General Musharraf, in the 2002 Legal Framework Order, replaced it with “after consultation with the Prime Minister”. And then the 18th Amendment replaced it with “on the advice of the Prime Minister”, which remains.
Today, most of General Zia’s changes have been removed, but Article 48(2) remains. In our current constitution, Section 58(2) is now the only provision that identifies a specific office in which the President expressly has discretion and Section 48(2) is meant to be read with this provision. This is the power of the President to dissolve the National Assembly when no member obtains the confidence of the majority. There is no other function of the President that expressly identifies a discretionary power.
Now we come to our current dilemma. Does serving at the “pleasure of the president” imply that the president can impeach the governor at his discretion or is the president always expected to act on the advice of the prime minister?
An apparently sensible reading of Article 101(3) is one that relies entirely on the original language of the constitution and does not contemplate the president having any discretionary power. However, such a reading ignores the fact that Article 48(2) is now part of the constitution. Nor does he consider section 101(5) which gives the president the power to make such arrangements as he deems fit for the exercise of the governor’s duties. Although these amendments were designed for the benefit of General Zia’s system, they are still part of the constitution today and should be interpreted consistently with the other parties.
A possible solution is provided by the recent judgment of the Supreme Court in the case of Judge Qazi Faez Isa. In that case, the Supreme Court held that the president had no discretion to make the decision to send a reference against a superior judge to the Superior Council of the Judiciary, in part because of the absence of the word ” discretion” in Article 209(5) . Furthermore, although the language of the debate here is different, the Supreme Court in Justice Isa’s case relied on the provisions of the constitution to conclude that it is not the president who leads the government, but the Prime Minister and his cabinet. In my opinion, this determines the purpose for which the prime minister must have the final say in removing the governor.
Ultimately, the interpretation may be based on a historical understanding of the term “pleasure” in its legal context, principles of consistency in legal text, or the constitutional role played by an office holder. However, when there are competing interpretations that carry weight, those charged with adopting one over the other must consider the deeper consequences of their decision. Often, questions of good versus evil become questions of order versus chaos. This is a question that, if answered incorrectly, will be the beginning of government chaos.
The writer is a lawyer. He tweets at @miansamiuddin